Do No Harm Act

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H.R. 3222

The Problem

When passed into law over two decades ago, the Religious Freedom Restoration Act (RFRA) was designed to protect minority religious groups' constitutional right to freely exercise their religious beliefs. RFRA prohibits the federal government from “substantially burden[ing]” a person’s religious exercise unless doing so is the least restrictive means of furthering a compelling governmental interest. RFRA was supported by a broad coalition of organizations including many in the civil rights community, who welcomed the law as an important shield from the tyranny of majority rule.

Despite this focused, straightforward intent, individuals and businesses have worked to distort RFRA into a blank check to discriminate or to impose their religious beliefs on others. In 2014, the U.S. Supreme Court issued a ruling in Burwell v. Hobby Lobby Stores, in which the Justices were asked to decide whether requiring a corporation to provide insurance coverage that includes contraception under the Affordable Care Act (ACA) is a “substantial burden” on the corporation with religious objections, and whether corporations are covered by RFRA. The Court ruled that closely held for-profit corporations are exempt from complying with the ACA contraception mandate based on the company’s religious belief under RFRA.

In her dissent, Justice Ginsburg expressed her concern that Hobby Lobby could lead to RFRA being used to permit discrimination against minority groups. In August 2016, this concern materialized in a court decision by a federal judge in Michigan in the case EEOC v. R.G. & G.R. Harris Funeral Homes. In the decision, the judge ruled in favor of a Detroit-based funeral home who fired a transgender employee due to her gender identity, stating that RFRA could be used as a defense in a sex discrimination claim under Title VII—exempting the employer from Title VII's non-discrimination requirements. The Judge specifically relied upon Hobby Lobby in his decision.

Although the 6th Circuit overturned the district court decision in favor of the transgender employee, the case may be appealed to the Supreme Court. Both Harris Funeral Homes and Hobby Lobby illustrate how individuals and businesses are attempting to use RFRA to refuse to comply with federal non-discrimination protections and other federal laws based on their religious beliefs.

What is the Do No Harm Act?

The Do No Harm Act clarifies that the Religious Freedom Restoration Act is intended to protect religious freedom without allowing the infliction of harm on other people. It would amend RFRA in order to restore the original intent of the legislation by specifically exempting areas of law where RFRA has been used to bypass federal protections. These include well-settled areas of law designed to protect our most vulnerable populations including child labor and abuse, equal employment and non-discrimination, health care, federal contracts and grants, and government services. The Do No Harm Act therefore ensures that religious freedom is used as a shield to protect the Constitutional right to free exercise of religion and not a sword to discriminate.

Broad Support

Numerous LGBTQ, civil rights, health, and faith groups support the Do No Harm Act, including the ACLU, AIDS United, Americans United for Separation of Church and State, The Center for American Progress, Interfaith Alliance, Lambda Legal, The Leadership Conference on Civil and Human Rights, NAACP, NARAL, National Center for Transgender Equality, National Partnership for Women and Families, National Women’s Law Center, and Planned Parenthood Federation of America.

What is the Current Status of the Bill?

The Do No Harm Act was introduced in the House of Representatives by Reps. Joe Kennedy (D-MA) and Bobby Scott (D-VA) on July 13, 2017.

For more information, please contact legislation@hrc.org. Read about other federal legislation pertinent to the LGBTQ community here.